[2016] KEHC 2539 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

SUCCESSION CAUSE NO. 508 OF 2010

IN THE MATTER OF THE ESTATE OF

EUNICE AUMA OTIENO (DECEASED)

BETWEEN

ABDALA OTIENO KITENGO …………....………..…….… APPLICANT

AND

COLLINS ODHIAMBO OTIENO …..… PROTESTOR/RESPONDENT

RULING

1. The application for consideration before the court is Notice of Motion dated 9th March 2015 seeking to confirm that grant issued to Abdala Otieno Kitengo (“Kitengo”). In response to the application, his son, Collins Odhiambo Otieno (“Odhiambo”), had filed a protest. Before I deal with the matters in issue, I will set the background of the matter.

2. Eunice Auma Otieno (“the deceased”) died intestate on 22nd January 2008. Kitengo and Elen Awuor Otieno, the deceased’s husband and sister respectively, applied for the grant of letters of administration. According to the Chief’s letter dated 3rd November 2008, the deceased had 5 children; Abdul Kitengo Otieno (“Otieno”), Collins Odhiambo Otieno (“Odhiambo”), Silas Kusina Otieno, Pamela Akinyi Otieno (deceased) and Milka Adhiambo Otieno (deceased). On 8th February 2012, a grant of letters of administration intestate was issued to Elen Awuor Otieno. According to the schedule of assets, the deceased’s assets at the time of death were as follows; Kisumu/Chiga/2627, Kisumu/Chiga/2629, Kisumu/Chiga/2631, Kisumu/Sidho East/1419. Kisumu/Wawidhi AII/908 was included as a liability to the estate claimed by John Ondiek Apiyo.

3. After the petition for grant of letters of administration was lodged, Kitengo was imprisoned and upon his release he applied to be substituted as the administrator. The court issued a grant of letters of administration intestate to Kitengo on 3rd July 2014.

4. The application for confirmation dated 9th March 2015 was supported by Kitengo’s affidavit sworn on 9th March 2015 and accompanied by a consent to the mode of distribution which proposed the following;

Silas Kusina Otieno and Collins Odhiambo Otieno – Kisumu/Wawidhi A II/908.

Abdala Otieno Kitengo – Kisumu/Chiga/2627, 2629, 2631 and Kisumu/Sidho/1419

Lilian Anyango Otieno and Caren Atieno Otieno – Nil.

5. From the evidence I have heard from the parties, it is clear that the applicant and his children have deep seated disagreement over how he treated them as they were growing up. I would emphasise that these issues are unlikely to be resolved in this case as a succession cause concerns the distribution of the deceased’s free property. Hence, in an application for confirmation the duty of the court is to ascertain all the free property of the deceased and distribute it in accordance with the Law of Succession Act.

6. Kitengo states that he and his wife accrued debts but the quality of the evidence is unsatisfactory in determining whether the property is free for distribution. I am also concerned that the effect of the indebtedness is intended to diminish the beneficiaries’ inheritance from their mother. I also note that the none of these liabilities were mentioned in the schedule of assets and liabilities (Form P & A 5) except Kisumu/Wawidhi A II/908. I am also cognizant of the fact that should the properties be sold as a result of the petitioner’s indebtedness; the beneficiaries will also suffer.

7. I therefore make the following directions;

(a) The petitioner to supply updated search certificates for the following properties; Kisumu/Chiga/2627, 2629 and 2631, Kisumu Wawidhi ‘A’ II/908 and Kisumu/Sidho East/1419.

(b) I direct that the petitioner provides a statement of account from Thabiti Finance Company (In Liquidation) to confirm the level of indebtedness.

(c) The petitioner shall furnish to the court the totality of his indebtedness.

DATEDandDELIVEREDatKISUMU this 27th day of October 2016.

D.S. MAJANJA

JUDGE